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How to lose an MSPB appeal: attack Agency witness as liars.

May 21, 2007

How to lose an MSPB appeal: attack Agency witness as liars.

Posted By
The Law Offices of Eric L. Pines, PLLC

The next post in the series “10 Ways to Lose an MSPB Appeal”
discusses a common problem in appeals before the Merit Systems Protection
Board (MSPB) – attacking Agency witnesses as liars, without evidence.

Now, people do lie. It’s a fact of life that unfortunately seeps
into just about every courtroom at one time or another. However, not every
statement that doesn’t echo your version of events is necessarily
a lie. Sometimes a witness is just stating the version of events as they
perceived it, not as you did.

However, most pro-se appellants in the MSPB (and even quite a few who are
represented by an attorney) want to just come out and tell the Judge “Mr.
Smith is a liar – that’s not what happened”. I’ve
heard this happen during settlement talks, pre-hearing conferences, and
worst, at the hearing. Simply telling the Judge that someone is lying
isn’t going to get you anywhere – and it may make the Judge
less inclined to want to listen to your story. This is a natural phenomena
– think about the last time you heard someone accusing someone of
being a liar without anything to back up their story. Did you get tired
of listening to them? Did you, in your mind, decide that they were not
being reasonable?

The better strategy in the court-room is to show the Judge that the witness
is lying, and let the Judge draw that conclusion him or herself. You should
use your time on cross-examination of a witness to show the Judge that
a witness is lying. On cross, there are, generally, three ways to attack
a witness who you know is lying: attack their perception, a bias they
might have, or their credibility. Let’s talk about each.

Perception. If someone has a perception problem, it means there was a flaw
in the way they saw certain events transpire – they weren’t
in the room, they heard about the event from someone else and don’t
have firsthand knowledge, they were talking to another person and couldn’t
really hear what was said – are all common examples of a “perception
problem”. You can make a witness look less credible by challenging
the way they perceived the events – and it’s much more effective
than just saying, “Judge, so-and-so is lying”.

Bias. Bias is a common reason for someone to tell a different version of
a certain event. Here are some examples of potential bias: The witness
is a life-long friend of the person whose testimony she is corroborating.
The witness will get into trouble with his supervisors if he didn’t
give the version of events he gave. The witness has a tendency to say
bad things about individuals of a certain race. Again, use your questioning
to bring out the bias rather than just say the witness is a liar.

Credibility. When folks hear “Credibility” they immediately
think “honesty” or “integrity”. Credibility in
a legal sense is a little different – if a person’s version
of events don’t “mesh” with common sense, basic human
experience, or other facts that have been testified to, they may not have
much legal credibility. This is the most effective way to attack a witness
who is not telling the truth. By discussing the inconsistencies mentioned
above, a Judge will start to view the witness as less than credible, and
will give his or her testimony little or no weight.

As an appellant in the MSPB, you have a tool available to you that can
help you show a Judge that a witness is less than credible: the deposition.
Depositions recorded by court reporters can be expensive, running $200-$400
per hour, depending on how fast or slow you talk. But the advantage is
that you “lock-in” the witnesses testimony – if they
change their story at hearing, you have them “dead-in-the-water”.
Better yet, you know in advance what they will testify to, and can spend
more time looking for bias, perception problems, and credibility issues.

If money is a concern, the MSPB does allow individuals to take “tape-recordings”
in lieu of depositions, for those interested in saving some money. But
there are drawbacks – tape recorded statements are hard to use at
a hearing – you have to fumble around the tape to find the right
spot. Then, there’s always the evidentiary question of authenticity….more
on all of this, later.

The bottom line is this – if you know a witness is going to lie,
or is lying, show the Judge how that is happening. Don’t just blindly
attack the witness by calling them a liar….it makes your case far
less credible, and alienates the person who will have to find in your
favor – the Judge.

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